Substantive And Procedural Law
Both substantive and procedural laws are inevitable components of law of any
civilized society. One without the other has neither any useful and meaningful
existence nor any significance as well. Both, substantive law and procedural
law, are mutually reinforcing and one acquires greater meaning and validity in
presence of the other. Both these laws have their own functions and
significance. We will discuss each of these laws below.
Concept Of Substantive Law
The law which defines rights and liabilities is known as substantive law. It is
so called because it puts in a clear-cut and precise form the substance of the
subject matter for enforcing which the courts of law and the officers of law
exist. The function of substantive law is to define, create or confer
substantive legal rights or legal status or to impose and define the nature and
extent of legal duties or people or between them and the State. Any wrong done
by an individual, group Substantive Law and Procedural Law of persons or the
state against the other(s) will make the wrong-doer accordingly liable to the
Wrongs may be either civil or criminal. Substantive law refers to all categories
of public and private law, including the law of contracts, property, torts and
crimes of all kinds. For a civil wrong, law calls upoil and forces the
wrong-doer to perform his part of contract; to do the act in question which it
was his legal duty or obligation to have done the very act, or the failure or
the denial to do which is the wrong in question against which remedy is sought.
Where such performance, known in legal language as specific performance, is not
possible then the wrong-doer is liable to pay damages or compensation to the one
who suffers from such wrong. It could be a wrong against any private person or
against society as such, or against the State itself. State has right and power
to maintain the law and order within the community, to keep society intact, if
it has been disturbed.
A criminal wrong, on the other hand, has an altogether different character. A
criminal wrong is an act or omission which is made punishable by any law for the
time being in force; and, in legal language, it is called an offence.
Substantive law deals with the "substance" of your charges, incase of any crime
done against the other.
Every charge is comprised of elements. Elements are the
specific acts needed to complete a crime. Substantive law requires that the
prosecutor prove every element of a crime in order for someone to be convicted
of that crime. What elements are required will depend on the crime with which
you are charged vis-i-vis the State's laws.
For example: Suppose you are charged with a felony driving while intoxicated.
Here, at four States the prosecutors are required to prove that:
- You were driving or operating a motor vehicle.
- Driving on a public roadway.
- Driving while you were intoxicated.
- And that you have prior convictions, if any, for driving while intoxicated.
Substantive law is the statutory or written law that governs rights and
obligations of those who are subject to it. It defines the legal relationship of
people with other people or between them and the State. In other words,
substantive law defines, in regard to a specific subject, the legal rights and
relationship of people with other people or as between them and the State.
Substantive law defines civil rights and responsibilities lliabilities in civil
law as well as crimes and punishments in the criminal law. It is codified in
legislated statutes or can be enacted through the initiative process.
For example: Murder is an offence under the Indian Penal Code (IPC) and is
defined therein. The IPC also provides for punishnlent for the crime. This is
known as substantive law. Similarly, the provision of the lndian Contract Act,
1872 are substantive in nature.
Substantive law has increased in volume and changed rapidly in the twentieth
century as the Central and State legislatures have enacted statutes that
displace many common law principles. The Indian Contract Act, the Transfer of
Property Act, the Industrial Disputes Act, the Indian Penal Code are instances
of substantive of Indian Legal
Concept Of Procedural Law System
The law which tells about how the courts and the officers dealing with the law
act in giving effects to the substantive law of the land is known as Procedural
law. 'Civil' and 'Criminal' laws are not two water-tight compartments. There are
several wrongs for which there are both civil and criminal liabilities and there
may be actions which are both civil and criminal in nature.
The law of procedure is that branch of law which governs the process of
litigation. It embodies the rules governing the institution and prosecution of
civil and criminal proceedings. Procedural law comprises the rules by which a
court hears and determines what happens in civil or criminal proceedings.
Historically, the law known to many is substantive law, and procedural law has
been a matter of concern to those who used to preside as judicial officers or
those who advocate law. But, over time, the courts have developed rules of
evidence and procedure, which also fall under procedural law mostly related to
fairness and transparency of the process.
According to Salmond (Fitzgerald, 2006) the law of procedure is the law of
actions. The word 'actions' is used in the sense to include all legal
proceedings. Procedural law deals with the means and instruments by which the
ends of administration of justice are attained, i.e. effective administration or
application of substantive law. Procedural law is the vehicle providing the
means and instruments by which those ends are attained. It regulates the conduct
of the Courts and the litigants in respect of the litigation itself, whereas
substantive law detennines their conduct and relations in respect of the matters
In brief, the procedural law: informs about the process that a case
will go through (whether it goes to trial or not); determines how a proceeding
concerning the enforcement of substantive law will occur; and prescribes the
practice, procedure and machinery for enforcement of the rights and liabilities.
The Indian Evidence Act, the Limitation Act, the Code of Civil Procedure, the
Code of Criminal Procedure are instances of procedural law.
Interrelationship And Differences Between Substantive Law And Procedural Law
It is interesting for us to know the relationship and differences, if any,
between the substantive law and procedural law.
Both are related to each other as follows:
- Substantive law and procedural law are the two main categories within the law. One without the other is useless. Both are essential for the delivery of justice.
- Procedural law is an adjunct or an accessory to substantive law and renders the enforcement of substantive rights very effective.
- Both, substantive law and procedural law, are codified in the form of rules. While the substantive law refers to the body of rules that stipulate the rights and obligations of individuals and collective bodies, the procedural law is also the body of rules but governing the process of determining the stipulated rights and liabilities of the parties in the given facts and circumstances.
- Substantive laws and procedural laws exist in both civil and criminal laws. But, in criminal law, if the procedural law is used to prevent the commission of offenses, then it assumes the character of substantive law as well. We also need to understand the difference or the distinction between substantive law and procedural law.
Substantive law precedes the procedural law. Concepts of substantive law and criminal law as well as the relationship and the distinction between the two broad branches of law, let us now have a look at the substantive and procedural laws with special reference to civil and criminal laws.
Remedial Laws And Penal Laws
Remedial statutes are those statutes which have come to be enacted on demand of
the permanent public policy generally receive a liberal interpretation. On
constructing a remedial statute, the courts ought to give it 'the widest
operation' which the language of statute will permit. Courts exist only to see
that a particular case is within the mischief to be remedied and whether it
falls within the language of the enactment. There are various examples of
remedial statutes which are discussed below along with the case laws:
The labour and welfare legislations: These legislations should be construed
broadly and liberally and while construing them due regard to the Directive
Principles of State Policy (Part IV) of the Constitution of India and to any
international convention on the subject must be given by the courts. In case of
MC Mehta v. State of Tamil Nadu AIR 1991 SC 417, the Child Labour (Prohibition
and Regulation) Act, 1986 was construed.
The Court, having regard to the Directive Principles in Articles 39(e), 39(f),
4(i), 45 and 47 of the Constitution, the fundamental rights in Art. 24, United
nation convention on the rights of the child, not only directed a survey of
child labour and its prohibition but also directed payment in monetary terms as
contribution by the employer to the Child Labour-Rehabilitation-cum-Welfare Fund
to the parent/guardian of the child to ameliorate poverty and lack of funds for
welfare of the child.
Social benefit oriented legislations: These legislations are to achieve the
purpose of the enactment but without any violence to the language.. It has been
held that a law enacted essentially to benefit a class of persons considered to
be oppressed may be comprehensive in the sense that to some extent it also
benefits those not within that class, for example, tenants and landlords.
The Control of Rent and Eviction Act which drastically limits the grounds on
which a tenant can be evicted is essentially to benefit the tenants but it is
also to some extent benefit the landlord, who can file a suit for eviction on
the grounds mentioned in the Act even though the tenancy has not been terminated
in accordance with the provisions of the Transfer of Property Act, 1956.
When contracts and transactions are prohibited by statutes for the sake of
protecting one class of persons, the one from which situation and condition
being liable to be oppressed and imposed upon by the other, the parties are not
in pari delicto and a person belonging to the oppressed class can apply for
redress even if he was a party to a contract or transaction prohibited by the
A principle stating that, a statute enacting an offence or imposing a penalty is
to be strictly construed, is not of universal application, though it must
necessarily be observed in every case. It is now only of limited application and
it serves in the selection of one when two or more constructions are reasonably
The rule was originally evolved to mitigate the rigour of monstrous sentences
for trivial offences and although that necessity and that strictness have now
almost vanished, the difference in approach made to a penal statute as against
any other statute still persists. The settled rule of construction of penal
sections is that 'if there is a reasonable interpretation which will avoid the
penalty in any particular case we must adopt that construction.
If there are two reasonable constructions we must give the more lenient one.'
Interpretation of penal provisions must be in consonance with the principles
underlying fundamental rights. Any provision which finds an accused with adverse
consequences without affording him any remedy to disprove an item of evidence
which stands against his innocence, is inconsistent with the philosophy
enshrined in Article 21. It was held by the Supreme Court that the courts should
interpret such a provision as to dilute it and to make it amenable to Article 21
of the Constitution.
Failure to comply with a statute may attract penalty. But only because a statute
attracts penalty for failure to comply with the statutory provisions, the same
in all situations would not call for a strict construction. An interpretation
which strikes a balance between enforcement of law and protection of valuable
human right of accused (right of privacy) must be resorted to. Provisions of
Evidence Act, 1872, state that the burden to prove that the case of the accused
falls within an exception to a statutory offence, lies on him.
But the question whether the defence set up by an accused is really a defence of
an exception or a defence setting up non-existence of a fact which is an
ingredient of the offence to be proved by the prosecution, depends upon the
construction of the particular statute. In applying and interpreting a penal
statute, public policy is also taken into consideration